“Dice-Loading” – The Legislative Intent in the People vs. Derror and How People v. Feezel Puts it to Rest

by Merna Noumeh

[Originally published 2010]

In People v. Derror, 475 Mich. 316 (2006), the determinative issue was whether 11-carboxy-THC is a schedule I controlled substance. Id. at 324. The expert witness in the Derror case testified, “Carboxy THC is a metabolite created in the human body during the body’s biological process of converting marijuana into a water-soluble form that can be excreted more easily.” Id. at 321. In order for the court to reach this decision it had to “give effect to the intent of the legislature by applying the plain meaning of the statute.” Id at 324.

Under MCL 333.7212, marijuana is defined as “all parts of the plant cannabis sativa L. growing or not; the seed s thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.”

In an opinion given by Justice Corrigan, the Court noted that the word “derivative” has many “divergent” medical definitions. The court did not revert back to the legislative intent given to that term. Instead the court chose one among the many medical-dictionary definitions available. The majority claimed that the definition it chose “most closely effectuated the Legislature’s intent.” Id. at 328. In the end, the Court determined that metabolites of marijuana, ones that have no pharmacologic effects on the person, are marijuana for purposes of the “operating under the influence of drugs” crime. Id at 341. The majority explained that “the Public Health Code includes within the definition of marijuana every compound and derivative of the plant….” Id. at 325. Simply stated, this means that if a person had smoked marijuana 20 or 30 days prior to the arrest, he can be convicted of an operating while intoxicated offense. Therefore, the Carboxy THC in the blood stream is enough for a conviction.

Justice Michael Cavanagh, writing the dissent opinion, challenged the majority’s opinion on stating that the interpretation of the statute “disregards the statutory language chosen by the Legislature and results in an interpretation that violates the United States Constitution and the Michigan Constitution.” Id at 342. The dissent stated “the majority’s interpretation means that a person can no longer legally drive a car if scientific testing can detect any amount of 11-carboxy-THC in his system. This means that weeks, months, and even years after marijuana was ingested, and long after any risk of impairment has passed. . . . “ Id. The dissent also stated that the statute is “intended to be consistent with applicable federal and state law . . . to achieve consistency.” Id. It seemed like the majority in the Derror case was going off on a limb and deviating from the consistency standards provided by state and federal law, especially since there is no federal law that provides that 11-carboxy-THC is a schedule 1 controlled substance. Id.

A few weeks ago, the court in People v. Feezel 486 Mich. 184, (2010) overturned the Derror case. Justice Michael Cavanagh, who was the dissenting justice in the Derror case, wrote the majority’s opinion. The court reevaluated the statute as it pertains to marijuana and concluded that 11-carboxy-THC is not a schedule 1 controlled substance. Id. at 207. The court critiqued the majority in the Derror case and explained, “The majority’s interpretation ignored and was inconsistent with other relevant statutory provisions.” Id at 207. The court further determined that the majority in Derror failed to interpret the marijuana statute “in a manner consistent with federal law . . . and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term metabolite . . . . “ Id at 207-208.

The court in Feezel explained, “Federal courts have stated that “the purpose of banning marijuana was to ban the euphoric effects produced by THC” and since 11-carboxy-THC has no known pharmacological effect, it cannot be considered a Schedule 1 drug. Id.

By ignoring the statutory provisions that classify a controlled substance, the majority in Derror failed to carry out the purpose and intent of the Legislature. However, this does not seem too far-fetched for the justice who wrote the opinion of the Derror case: Justice Maura Corrigan. Justice Corrigan wrote an article titled “Dice Loading” Rules of Statutory Interpretation, 59 N.Y.U. Ann. Surv. Am. L. 231, 232 (2003). In the article, Justice Corrigan stated, “Judges sometimes use preferential, or “dice-loading,” rules to “interpret” laws without regard to the plain meaning of the language in a statute. Id. Contradictory enough, this is exactly what justice Corrigan did in her opinion in the Derror case. She “dice-loaded” the marijuana statute by supplementing it with her opinion and an online medical dictionary.

If Justice Corrigan is so opposed to judges interpreting the legislative intent so liberally, and supplementing the legislative intent with their own person views, then the Derror case should have been decided differently. Justice Corrigan reasoned that this “dice-loading” mode of interpretation often permits judges to usurp legislative power.” Id. And that “the proper method of interpretation requires a judge to try to discern the fair meaning of the statutory text, free from dice-loading rules.” Id. Justice Corrigan’s views are nevertheless construed from formalistic perspective- adhere to the language of the statute. If Justice Corrigan truly believed in the fair meaning of the marijuana statute, then Justice Michael Cavanagh was correct in overturning the Derror case in Feezel and properly dissenting in Derror. Justice Corrigan further explained that the “use of preferential rules is one of a handful of practices that allows interpreters to disregard the text of a statute.” Id. Oddly enough, this is exactly what Justice Corrigan did in her opinion of the Derror case.

So how are judges supposed to construe the legislative intent? One would believe that it’s by examining the legislative history behind the statute. This is what provides us with insight for enacting the statute in the first place. If judges disregard the legislative intent and its history, there would be no need for the separation of branches. If the legislative branch provides us with the laws and our courts are to interpret such laws, what is left for congress to do if judges such as Justice Corrigan fail to effectuate the legislator’s intent?

Luckily enough there is the Doctrine of Stare Decisis- where courts may overrule precedents that were wrongfully decided. There were dissenting judges who noted the unfairness and inappropriateness in the Derror decision. After four years of unconstitutional interpretation of the marijuana statute, Justice Cavanagh was faced with the opportunity to overturn the Derror case, which finally gave real interpretation into the legislative intent without unduly “dice-loading” the meaning of the statute.


Many thanks to Merna Noumeh for writing this article! Merna was our 2010 intern working at the Maze Legal Group PC from Cooley Law School. She proved to be an excellent intern and a wonderful attorney. She plans to return to her home state of Pennsylvania where she intends to practice law.  — William Maze